1. Econ 522 Economics of Law Dan Quint Spring 2017 Lecture 1
Questions about enrollment, prerequisites, or section? Please talk to me after lecture.
Econ 522 Economics of Law
Dan Quint
Spring 2017
Lecture 1

2. I’m Dan Quint, this is Econ 522, Economics of Law
If you’re trying to get into the class but not yet registered, put your name and info on the yellow pad going around
If you haven’t taken Econ 301 or the equivalent elsewhere, talk to me after class
If you have questions about section, please talk with the TA (who I’ll introduce in a bit)
Section will not meet this week

3. This class is being recorded
Lecture capture for online course this summer
Video will not be ready for use this semester
Don’t want to be recorded? Avoid first couple of rows

4. Plan for today Logistics, schedule, textbooks, etc.
Overview: what is the semester going to be about?
Some history
Common law and civil law traditions
Example: dead whales and baseballs

5. Logistics/ Syllabus

6. Website Course website: http://www.ssc.wisc.edu/~dquint/econ522
(Or UW Econ  “Undergraduate”  “Course Information”  “522”)
(Or Google “Econ 522” or “Dan Quint” or…)
I’ll also be using for some things
Get there through learnuw.wisc.edu or my.wisc.edu

7. If you’re looking for something, it’s probably online
Website will have:
Syllabus
Office hours
Homework assignments
Dates of midterms, date/location of final (once announced)
My slides/lecture notes
Section notes/handouts
Sample exam problems/solutions
will have:
Access to supplemental readings
Homework submission
Grades
(English prof at Austin Community College) 6 6

8. Logistics Teaching Assistant: Wenqi Wu Office hours
Contact info on syllabus/website
Section meetings begin next Friday (January 27)
Any questions about section – talk to TA
Office hours
Wenqi: Thursdays 2-4
Me: Tuesdays 4-5, Wednesdays 11-12, other times by appointment

9. Schedule
Homework generally due midnight on Thursday, so it can be discussed in section Friday
Online submission via
Please be sure it uploaded successfully!
Midterms – in class: tentatively Wed Mar 1, Mon Apr 10
Final exam Sun May 7, 10:05 a.m., location TBA
Please let me know EARLY if…
you have an exam conflict, or
you’re a McBurney student and need accommodations for exams

10. Readings
“Recommended” textbook: R. Cooter and T. Ulen, Law and Economics (6th ed.)
AVAILABLE FREE ONLINE (link on syllabus, PDF on
copies on reserve at Memorial Library and Social Science Library (8th floor of Soc Sci)
Another book I like: D. Friedman, Law’s Order
available free online (link on syllabus)
(or it’s a $30 paperback)
Textbook: Robert Cooter and Thomas Ulen, Law and Economics
current version is 6th Edition
I don’t mind if you use an earlier version – my notes are largely based on 5th
Another book I like: David Friedman, Law’s Order
I use stuff from here in lecture sometimes
book is available free online (link on syllabus) – think of it as an “optional second textbook” (shorter/lighter)
much less comprehensive than Cooter and Ulen, but very thoughful/insightful on the things he covers

11. Readings Additional readings available online
Links on syllabus, PDFs on Canvas
Stars on syllabus next to most important
Other related books listed on syllabus
Additional readings
available online, through (plus external links on syllabus)
stars next to most important
Other books related to law and economics on the syllabus

12. Grading Grades are based on Joint work on homework
occasional homeworks (probably 4) – 20%
two in-class midterms – 20% each
final exam – 40%
Joint work on homework
you’re welcome to work together on homework
I’m happy for you to discuss questions, ideas, answers together
but everyone should write up their own answers – copying someone else’s answers word-for-word is not OK
if you do work with others, please note who you worked with on your homework
Attending lecture/section

13. What is this class about?
That’s about it for logistics – everything’s on the syllabus, which is on the website – so let’s turn to the question of, what is this class going to be about?

14. What is this class going to be about?
This class is not about the law
Well, OK, it’s sort of about the law, but…
You’re not in law school
I’m not a lawyer, I’m an economist
It’s not my job to make you a better lawyer
It is my job to teach you to think like an economist
Economics is not a bunch of facts, it’s a set of tools
We can point these tools at just about anything
In this class, we’ll point them at laws and legal institutions
But we’re more interested in the tools than in the answers
First of all, it’s not going to be about the law
Well, OK, fine, obviously, that’s not true, it’s sort of going to be about the law
But you all are not in law school, you’re in an undergrad economics class
And more to the point, I’m not a lawyer
I’m not licensed to practice law in the state of Wisconsin or anywhere else, I’ve never been to law school, I honestly didn’t know that much about the law when I arrived at UW eight years ago
What I am is an economist, and a professor in the economics department here
So even though this class has “law” in the title, it’s not my job to make you a better lawyer; it’s my job to make you a better economist
What does that mean?
Well, as I see it, economics is not a bunch of facts – being a better economist does not mean knowing the GDP of Chile, or which way interest rates move if there’s a trade imbalance
Economics is a way to look at the world, a way to analyze situations – a set of tools
And we can point these tools at just about anything
In this class, we’ll be pointing these tools and laws and legal institutions
But I want to be clear that the point of this class is more about the tools than about the answers
On the final exam, I won’t be impressed if you can regurgitate random facts from this semester, like the difference between strict liability and negligence, or even which one will lead to more accidents in a particular situations
What I want is for you to know how to find that answer for yourself – to be able to use the tools of microeconomics to answer questions about how the world will work

15. What is this class going to be about?
what is Law and Economics?
unsatisfying answer:
“thinking about the law like an economist”
microeconomics is about how people respond to incentives
we’ll be using microeconomics (including a bit of game theory) to analyze laws and legal systems
the incentives they create
and the actions and outcomes they lead to
as I said, I’m an economist, not a lawyer
so I’ll start with a fairly unsatisfying answer:
“thinking about the law like an economist”
microeconomics is about how people respond to incentives
how a consumer responds to a price
how a firm responds to a competitor’s actions
how a politician responds to political pressures
we’ll be using microeconomics (including a little bit of game theory) to analyze laws and legal systems
the incentives they create
and the actions and outcomes they lead to

16. “thinking about the law like an economist”: different from thinking about the law like a lawyer
suppose something has happened
when a lawyer sees the case, the “damage is already done”
what’s left?
assign blame
maybe punish someone
maybe move money around
this is interesting to the people involved…
…but it’s not interesting to economists!
suppose something has happened
a car hit a bicylist
my construction company ordered 16 tons of steel and a shipping company failed to deliver it
someone murdered his wife
when a lawyer sees the case, the “damage is already done”
the incident already occurred
the bicyclist’s leg is already broken, construction is delayed, the wife is dead
what’s left is to assign blame, and maybe punish someone or have someone give money to someone else
this is interesting to the people involved – if you’ve been hit by a car while riding your bike, you care a lot about whether you’re entitled to damages
and interesting to your lawyer
but it’s not interesting to economists
what happens after the incident is generally just resources being transferred from one person to another
no new value is being created at this stage

17. So what about the law is interesting to economists?
before the incident happened, lots of decisions were made
expectations/beliefs about what will happen after the fact influence these decisions
these decisions have an impact on outcomes
and these decisions therefore affect how much value is created (or destroyed) by society
which is very interesting to economists
before the incident happened, lots of decisions were made
driver decided how fast to drive
bicyclist decided whether to wear a helmet, and whether to bike on the road or a bike path
shipping company decided how far ahead to plan delivery
my construction company decided how much to depend on that steel shipment arriving on time
expectations/beliefs about what will happen after the fact influence these decisions
if the driver knows he’ll be punished severely for the accident, he might take a cab home from the bar, or drive slower
if the bicyclist knows he won’t be compensated if he’s in an accident, he might be more likely to wear a helmet, or reflective clothing
if my construction company knows shipper won’t be punished for failing us, we might not bid on a big project
these decisions have an impact on outcomes
how many accidents happen
how many construction projects are begun, and completed
and so on
and these decisions therefore affect how much value is created (or destroyed) by society
and this is very interesting to economists

18. So what about the law is interesting to economists?
Decisions/ Actions
THE LAW
Compensation
Compensation
Something happens, which leads to litigation, which leads to some legal outcome
And the law, of course, affects what outcome is reached
But no new wealth is created or destroyed by me writing you a check
It might seem fair if I at least pay for the damage I did
But from an economic point of view, once the accident has happened, who bears the cost is uninteresting
What happens after the initial event is the domain of lawyers, and we’re not lawyers
Because the law affects what outcome will be reached after the fact,
it also changes the decisions people make and actions people take
That is, it impacts how we behaved leading up to the accident
If I know that drivers who hit bicyclists have to pay huge cash settlements, I might drive more slowly – or take a cab if I’m planning to drink – or I might have chosen not to drive at all that day
If you know that bicyclists who get hit by cars don’t owe anything, you might bicycle less, or only on bike paths, or you might be more likely to wear a helmet
And these choices affect whether or not the accident occurs, or how much damage is done
Or whether steel gets delivered, and whether a big construction project ever even gets planned
All of this is interesting to economists
I’m an economist, and for the purposes of this class, so are you
(Another way to think about it:
Everything that happens after the accident, affects the distribution of wealth in the economy, but not the total amount of wealth
That’s what lawyers are fighting over
Everything that happens before the accident, affects the total amount of wealth in the economy
That’s what we, as economists, are interested in.)
Litigation
Litigation
Something happens
ECONOMISTS
LAWYERS
LAWYERS
(you and me)

19. How economists think – an example
You live in a state where the most severe criminal punishment is life imprisonment. Someone proposes that since armed robbery is a very serious crime, armed robbers should get a life sentence.
A constitutional lawyer asks whether that is consistent with the prohibition on cruel and unusual punishment.
A legal philosopher asks whether it is just.
An economist points out that if the punishments for armed robbery and for armed robbery plus murder are the same, the additional punishment for the murder is zero –
and asks whether you really want to make it in the interest of robbers to murder their victims.
Friedman, Law’s Order, p. 8

20. So that will be our focus in this class
So that’s our focus in this class
Looking at how the law, by setting expectations about what will happen, changes peoples’ behavior
And through that behavior, how it affects economic outcomes

21. But of course, that’s not the whole story

22. But of course, that’s not the whole story
The laws themselves have to come from somewhere
In our system, new laws are passed by the legislature, and interpreted by judges
Legislators and judges are people, who respond to incentives like anyone else
Legislators and judges also come from somewhere – legislators are elected, and judges are elected or appointed, and the voters themselves respond to incentives as well
All this is done within a system specified in a constitution of some sort…
Which is itself the outcome of some sort of process
This is all fascinating stuff for political economists, political scientists, constitutional scholars, legal philosophers, historians…
…but outside the scope of this class
In addition to this, things other than the law can influence peoples’ behavior
Robert Ellickson, in a book titled “Order Without Law: How Neighbors Settle Disputes,” argues that often peoples’ behavior depends not on the law itself, but on social norms like what it is believed to take to be a “good neighbor”
I might choose not to speed, even if I’m not liable for hitting people, because speeding is perceived as being thoughtless and rude; or because if I did hit someone, I might not be liable, but I would worry about being ostracized
Nonetheless, for this class, we will be focusing on this lower-left corner
we will be examining the effect that the law has on outcomes, assuming that people do indeed take the law into consideration when deciding how to act;
and we’ll mostly be looking at laws as if they “fell from the sky” – not worrying about where they came from, just taking them as given, and examining the incentives they create and the effects that they’ll have

23. Areas of the law we’ll cover
Property law
Contract law
Tort law
Legal process
Criminal law
Other topics
Property law
what things can be owned?
what can (and can’t) owners do with their private property?
the answers sometimes seem obvious – this is my iPhone, you can’t take it from me
but lots of “edge cases” where things are less clear
do we own our bodies? (can sell our blood, can’t sell our kidneys, can’t sell ourselves into slavery)
does my right to be undisturbed on my property trump your right to have people over and make noise?
if you own a house and the government wants to build a school, or a road, or a park, they can force you to sell
if I lose my wallet and you find it, is it yours, or do you have to give it back?
Contract law
what can and can’t we contract on?
can’t contract for sex
if I contract to buy drugs from you and you take my money and run, I can’t sue you
what constitutes a legal contract?
what happens if one of us doesn’t live up to our end of a contract?
what “default rules” stand in for terms we don’t specify?
Tort law
a tort is when someone harms someone else, like in a car accident
so the question in tort law is, who’s responsible for accidents? what do they owe?
how do we design a system to get “good” outcomes?
what does this mean for industrial safety regulation?
The legal process – what is the goal of the legal system? how do we achieve it?
Criminal law – is there a “right” amount of crime to aim for? how do we achieve it?

24. Finally, a warning: I THINK THIS IS A HARD CLASS
“thinking about things like an economist” can be hard
This way of thinking comes naturally to some people…
…but not to others
If you “don’t get it”, you can’t get by memorizing a bunch of facts
Someone in this class will get a C who’s never gotten a C before
Not trying to scare everyone off – I’d just rather say this now than after the first midterm
To do well in this class, you’ll have to learn to think about problems in a certain way
This type of thinking comes easily to some people, not to others
If you can’t learn to think in this way, there’s nothing you can memorize to do well in this class
Someone in this class will get a C who’s never gotten a C before
If you took intermediate micro and everything clicked – things naturally made sense – there’s a good chance you’ll do well in this class
If you struggled in 301, or are afraid of derivatives, you may have a very hard time in this class
I’m not trying to scare people off, I just want to be up-front that this is a hard class 23 23

25. Plan for the rest of today…
A bit of history
the Common Law and Civil Law traditions
An example
dead whales (and baseballs)

26. A bit of history

27. A bit of history
Two great Western legal traditions of the last millennium
(English) Common Law
Civil (Napoleonic) Law
A little confusing, because “civil law” also refers to a branch of the law within U.S. system
Criminal law – deliberate illegal acts punished by government
Civil law – lawsuits brought by one private party against another
We’ll touch on both, but most of class will focus on civil law issues, within both the Common Law and Civil Law traditions
Said before: we’ll mostly treat laws as if they “fell from the sky”
But it’s still good to know the origins of the legal systems we’re considering
Two great Western legal traditions of the last millennium
Common Law
Civil Law

28. Basis of modern legal systems27
(Source: Wikimedia Commons, via Washington Post WorldViews blog) 27

29. Basis of modern legal systems
Common law: England and former British colonies, or basically, places that speak English
(Note Guyana and Belize – former British colonies, still use English)
Common Law
Civil Law
Common + Civil
Religious Law
Customary Law 28
(Source: Wikimedia Commons, via Washington Post WorldViews blog) 28

30. Basis of modern legal systems
Civil law: the rest of Central and South America, most of Africa, Europe and Asia
Common Law
Civil Law
Common + Civil
Religious Law
Customary Law 29
(Source: Wikimedia Commons, via Washington Post WorldViews blog) 29

31. Basis of modern legal systems
Mix of Common and Civil Law traditions: Quebec and Louisiana (for historical reasons), Scotland, South Africa and Namibia
Common Law
Civil Law
Common + Civil
Religious Law
Customary Law 30
(Source: Wikimedia Commons, via Washington Post WorldViews blog) 30

32. Basis of modern legal systems
Much of Middle East and Northern Africa: religious law
Common Law
Civil Law
Common + Civil
Religious Law
Customary Law 31
(Source: Wikimedia Commons, via Washington Post WorldViews blog) 31

33. Basis of modern legal systems
Mongolia and Sri Lanka
Common Law
Civil Law
Common + Civil
Religious Law
Customary Law 32
(Source: Wikimedia Commons, via Washington Post WorldViews blog) 32

34. Basis of modern legal systems
Common and Civil Law account for legal system in whole lot of the world today
(by my estimate, about 93% of the world’s population, and about 97% of the world’s GDP, is in countries governed by common law, civil law, or a mix)
Common Law
Civil Law
Common + Civil
Religious Law
Customary Law
Common law, civil law, or mixture of the two forms basis of legal systems covering 93% of the world’s population, and 97% of the world’s GDP 33 33

35. The Common Law originated in 12th century England, under King Henry II
judges ruled according to local norms/customs
“go out and find the law as it’s being practiced”
now: new laws enacted by legislature
judges interpret law, rely heavily on precedents
each decision is a precedent for future cases
so common law originally rooted in common practices; can be changed by legislation; evolves with each new case
basis for legal system in most English-speaking countries
the Common Law system originated in England in the 12th century
King Henry II would send judges from his central court to hear cases throughout the country
they would rule according to local norms and existing practices
one version: the judges were told to “go out and find the law” as it was already being practiced
if some area had developed rules and customs for how people should act, that rule would become the law
under the common law, new laws are enacted by legislature
the job of a judge is to interpret the laws, relying heavily on precedent
the way that similar cases were decided in the past
once one case is decided, it becomes a precedent for future cases
so common law rooted in common practices of the people, except where those practices have been explicitly superseded by legislation, and evolves over time as new precedents are added to the case law
the English Common Law system is still the basis for legal systems in many English-speaking countries
U.S. and Canada
Great Britain and Ireland
Australia and New Zealand
parts of Africa and Asia

36. The Civil Law originated following French Revolution
judges, like king, were viewed as “corrupt and worthless”
Napoleon commissioned a group of legal scholars to draft a new set of laws – the Napoleonic Code
less reliance on historical norms and precedents
attempt to explicitly spell out the law, starting from blank slate
borrowed from 6th century Roman source
legal arguments appeal directly to written law, and commentary
persists today in most of Western Europe, Central and South America, and parts of Africa and Asia
The other major legal tradition of the last millennium is the Civil Law
originated following French Revolution
revolutionaries felt judges, like the king, were “corrupt and worthless”
chose to abandon common law system and start fresh
Napoleon commissioned a group of legal scholars to draft a new set of laws, which became known as the Napoleonic Code
these scholars modeled their work on The Body of the Civil Law, compiled for Roman emperor Justinian in 6th century A.D.
the Civil Law system relies less on historical norms and precedents
more laws are explicitly spelled out
legal arguments appeal directly to the meaning of the law itself, and to commentary meant to clarify that meaning
The Civil Law system persists in most of Western Europe, Central and South America, and parts of Asia not colonized by Britain (and, to a degree, the state of Louisiana)

37. Comparing the Common Law and Civil Law traditions
orig. 18th century France
persists in Western Europe and lots of other places
based on “ancient sources and pure reason” (group of scholars with blank slate)
legal arguments appeal to interpretation of the law itself, and to commentary which clarifies its meaning
Common Law
orig. 12th century England
persists in U.S., U.K., other English-speaking countries
based on existing practices and social norms
arguments focus on legal precedents, so law evolves as new precedents are set

38. Comparing the Common Law and Civil Law traditions
“Spontaneous order versus planned order”
Civil law was laid down at a particular time, meant to be more static
“The common law is not shaped by a single mind, but a bottom-up aggregate of many individual plans”
Respects existing customs and practices
Evolves as new laws are passed and new cases decided
For an example of how the common law develops and responds to local practices…
One of my former students put it very nicely: he described the difference between the two as the difference between “spontaneous order and planned order”: the civil law was laid down at a particular time and meant to be more static, while “common law is not shaped by a single mind, but a bottom-up aggregate of many individual plans,”

39. Whaling

40. A nice example of how the common law responds to local norms and practices
Question: who owns a dead whale?
1700s-1800s – whales hunted for oil, bone, other valuable products
a captured whale could be worth 3-4 times a typical family’s yearly income
conflicts would sometimes arise over ownership

41. What’s the problem?
It frequently happens that when several ships are cruising in company, a whale may be struck by one vessel, then escape, and be finally killed and captured by another vessel….
[Or] after a weary and perilous chase and capture of a whale, the body may get loose from the ship by reason of a violent storm;
and drifting far away to leeward, be retaken by a second whaler, who, in a calm, snugly tows it alongside, without risk of life or line.
Thus the most vexatious and violent disputes would often arise between the fishermen…
- Melville, Moby Dick

42. R. Ellickson, A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry
Examines 12 British and American court cases where ownership of a dead whale was contested
In each case, the local whaling industry had established norm for determining ownership
Norms differed from place to place…
…but were well-suited to that environment
And in each case, the common-law court ruled in accordance with these established norms

43. One norm: “fast fish/loose fish”
Established by British whalers in Greenland fishery
Prey were right whales
Hunting was done by harpoon attached to whaling boat by rope
A harpooned whale attached to a boat was a “fast fish” and belonged to the boat it was attached to
If the whale broke free, or had not yet been harpooned, it was a “loose fish” and other ships were free to pursue it
This rule discussed in Moby Dick
So under this rule, you had no claim to a whale unless it was attached to your boat by a rope
If a dead whale started to sink and you cut the line to save your boat, someone else could recover the lost whale later

44. A different norm: “iron holds the whale”
Used in fisheries where sperm whales were hunted
sperm whales swim faster, dive deeper, fight harder
hunted with harpoons attached to “drogues”
sperm whales swim in schools
The rule that developed: “iron holds the whale”
if you harpoon a whale first, you own it…
…as long as you remain in “fresh pursuit”
“Iron holds the whale” tended to be the rule in fisheries where sperm whales were hunted
sperm whales swim faster, dive deeper, fight harder than right whales
hunting them in old way would risk sinking the boat
instead, harpoons were attached to “drogues” – pieces of wood or other materials that would float behind the whale and tire him out (like the empty barrels in Jaws)
the ship would follow the whale until it tired, then kill it
sperm whales also swim in schools - so when a ship stumbled into a school of sperm whales, most important to kill or wound as many as possible quickly, rather than stop to secure each one
The rule that developed: “iron holds the whale”
if you harpoon a whale first, you own it…
that is, your iron (harpoon) stakes a claim to that whale…
…as long as you remain in “fresh pursuit”
(you could also claim a dead whale with a “waif” – a pole with a flag – and come back for it later, allowing you to hunt multiple whales when you came upon a school)

45. Clear tradeoff between the two rules
“Iron holds the whale” is more complicated/ambiguous
“Fast fish/loose fish” is simpler/clearer
“[Whalers] would tend to prefer… bright-line rules that would eliminate arguments to fuzzy rules that would prolong disputes.”
But wouldn’t work well with sperm whales, given how they were hunted
Tradeoff between simpler rule versus better incentives
Simpler rule is easier to implement, fewer disputes
But more complicated rule might be able to provide better incentives
“Iron holds the whale” is more complicated
What if a whale is found with multiple harpoons in it?
What constitutes “fresh pursuit”?
“Fast fish/loose fish” is a simpler, “bright-line” rule
Less ambiguity, should lead to fewer disputes
But wouldn’t work well with sperm whales
Too dangerous to hunt sperm whales with harpoons tied to boat
Wasteful to let rest of a school swim away while trying to secure first whale
When choosing between the two rules, we see a tradeoff between simpler rule versus better incentives
The simpler rule is easier to implement, and would likely lead to fewer disputes
But the more complicated rule might be useful in providing better incentives – as in the case of sperm whales
This tradeoff – between simpler, clearer rules, and more complicated rules that provide more precise incentives – will be one that we see several times in this class

46. A third norm developed where finback whales were hunted
Finbacks are extremely fast swimmers
19th-century whalers hunted them with bomb lances
Dead finbacks would sink, wash up on shore days later
Norm developed that original killer and the finder of the whale would split it
Ghen v Rich (1881)
Finbacks are extremely fast swimmers
19th-century whalers hunted them with “bomb lances”
Dead finbacks would sink to the bottom immediately, then wash up on shore 2-3 days later
In order for the industry to function, there needed to be an incentive to hunt finbacks, but also an incentive to retrieve/harvest the dead whales once they were found
The norm developed that the original killer and the finder of the whale would split the proceeds
In some places, there were predetermined shares
New England coastal norm was to split the whale according to the effort each side put in
Ghen v Rich – 1881 Massachusetts case – the finder of a dead finback sold it to the defendant, who didn’t want to return a share to the original killer of the whale
court pointed out that if the finder were entitled to keep the whole whale, there would be no reason to hunt whales, and the entire whaling industry would have to shut down

47. Conclusions from Ellickson
Ellickson’s emphasis: in each location, norms developed which were well-suited to that particular environment
“When people are situated in a close-knit group, they will tend to develop for the ordinary run of problems norms that are wealth-maximizing.”
My point: in every case, the judge ruled in accordance with the local custom
“Anglo-American whaling norms seem to have emerged spontaneously, not from decrees handed down by either organizational or governmental authorities. In fact, whalers’ norms not only did not mimic law; they created law. In the dozen reported Anglo-American cases in which ownership of a whale carcass was contested, judges invariably held proven whalers’ usages to be reasonable and deferred to those rules.”
Ellickson emphasizes that in each location, norms developed which were well-suited to that environment
customs naturally appeared/evolved to “maximize the wealth” of the local community
by providing incentives for what was seen as important, valuable work
(in fact, the incentives worked too well – whales were plentiful when these norms appeared, but in many cases were then hunted to near extinction)
But my point: in each case, the common-law judge deferred to the local custom
local rules were different in different places
in every case Ellickson examined, court’s ruling matched local custom
Even when that custom differed from legal precedents that had been established elsewhere

48. So that’s whaling law To connect it to more modern concerns…
I found a legal brief using same principles to determine ownership of a souvenir baseball
Ownership of Barry Bonds’ 73rd home run ball was disputed
Alex Popov had the ball in his glove first, but lost it in the scrum
Patrick Hayashi ended up with the ball, both wanted it
In 2001, Barry Bonds broke the record for home runs in a season, with 73
The last one that he hit, ownership of the ball was disputed

49. The brief perfectly captures the essence of the common law system:
“Simply put, the Court should adopt a rule of first possession for baseballs that recognizes the longstanding customs and practices of baseball fans who for more than seventy years have competed to catch and gain title to baseballs that leave the field of play…
With these principles in mind, the Court should define the law of first possession of baseballs… by answering two questions:
First, what is the custom, practice, and understanding of baseball fans about first possession and title to baseballs that enter the stands?
Second, should the rules as practiced in the stands be modified to minimize the risk of violence, misconduct, and tortious behavior?”
- Brian Gray, “Report and Recommendations on the Law of Capture and First Possession”
(in the end, ball was sold for $450,000, proceeds were split 50/50)

50. So that’s a bit of law Next week, we’ll do some economics!
Not registered? Name on the yellow pad
Haven’t taken Econ 301? Come talk to me
Questions about section? Talk to TA
See you all next Monday
Questions